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Monday, April 6, 2015

Civil Suits Against Police Under Attack - The Waning Power of Civil Law to Counter Police Violence

I've been away over the weekend, so am a bit behind on stories to write. I try not to write when spending family time on vacation! Ahead this week - apologies, deaths by taser, death by gunfire, thoughts on undergraduate achievement. I'm also writing about the Middle Ages, the local Zoo, public intellectuals, and the Game of Thrones.

For Monday, though, I want to talk about civil suits. One of the reasons that Sheehan vs SF worries me (see my piece here) is that it may make it harder for civil suits against police to get in front of juries, and already lawyers don't want to take those cases. It's hard to sue police and win.

In 2005 (the wheels of justice can grind exceedingly slowly) the police in Cambridge, Md., acted on a tip and found a small amount of marijuana residue in a trash can. At 4:30 a.m. on May 6, a SWAT team executed a search warrant on the apartment of Andrew Cornish. A jury would later find the commandos failed to knock and announce themselves properly. As they rushed through the apartment, Cornish came out of the bedroom with a sheathed knife in his hand. The police say he advanced on them. One of the officers shot Cornish twice in the head, killing him.

Elapsed time: about 30 seconds.

So we have a situation in which SWAT was found to have killed someone after not following procedure.

Cornish’s father sued, claiming the police used excessive force and violated Cornish’s constitutional rights. The first point was quickly dispatched with. (Lesson: Never bring a knife to a gunfight.) But as Balko points out in his Washington Post blog, on the second point the courts agreed. Not only that, “both the trial court and the appeals court that ruled against Cornish’s father acknowledge both that the police violated the knock-and-announce rule, and that they lied about doing so.”

Yet two out of three judges on the 4th Circuit panel (both George W. Bush appointees) decided nevertheless that Cornish bore all the blame for his own death. Other courts have reached similar conclusions in similar cases, you see — so that must make it OK: The police can break into your home unlawfully and shoot you dead, and nobody is at fault for that except you. Not only that, according to the court majority “no reasonable jury could have found that the Officers’ knock-and-anounce violation proximately caused Cornish’s death.”

That is irrefutable, in the same way the no-true-Scotsman fallacy is irrefutable. If I say to you, “No Scotsman would shave his beard,” you can show me countless cleanshaven Scotsmen. Rather than concede I was wrong, I can say, “Well, no trueScotsman shaves his beard!” The revision renders all your counterexamples irrelevant by definition. So while it’s easy to imagine plenty of juries that might blame the police for Cornish’s death, the court can simply write them all off by contending no reasonable jury would.

I think the "reasonable" jury and "reasonable" officer standard is dangerous. In the Sheehan case, the city is arguing a reasonable officer might have concluded that Sheehan had a gun, had hostages, was making explosives, or could escape out the window. In fact, none of these things were true. In fact, neither officer at the scene believed these things to be true according to initial reports. But a reasonable officer could have, says the city, so the suits should be thrown out.

This writer ends:

The courts, including the Supreme Court, have granted wide latitude to police officers, partly because — they say — officers who exceed the scope of their authority can be held responsible through lawsuits.

And if they can't be held responsible, we lose that very important check on police authority.